A Personal Representative's Right to Participate in a Will Contest

• Publication year: 2004
• Pages: 57
• Citation: Vol. 33 No. 4 Pg. 57

33 Colo.Law. 57 Colorado Lawyer 2004.

2004, April, Pg. 57. A Personal Representative's Right to Participate in a Will Contest

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57

Vol. 33, No. 4, Pg. 57

The Colorado Lawyer
April 2004
Vol. 33, No. 4 [Page 57]

Specialty Law Columns
Estate and Trust Forum
A Personal Representative's Right to Participate in a Will Contest
by Walter M. Kelly II

This column is sponsored by the CBA Trust and Estate Section The column focuses on trusts and estate law topics, including estate and trust planning and administration, elder law probate litigation, guardianships and conservatorships, and tax
planning

Column Editor:

David W. Kirch, of David W. Kirch, P.C., Aurora - (303) 671-7726, dkirch@qwest.net

Walter M. Kelly II
About The Author:

This month's article was written by Walter M. Kelly II, Littleton, a shareholder in The Law Offices of Miller & Steiert, P.C. - (303) 798-2525, wkelly@m-s-lawyers.com.

This article discusses the standing of a personal representative to participate in a will contest in Colorado. It reviews the issue historically and addresses the current statutes on the issue in the Colorado Probate Code.

Participation in a will contest by a personal representative ("PR") can directly impact the ultimate distribution of a decedent's estate, especially where the PR is backed by the financial resources of the estate. Historically, a PR's right to participate in will contests at estate expense in Colorado was clearly defined by statute. However, Colorado's present statutes fail to expressly address the issue with equal clarity. Thus, there is uncertainty concerning the PR's rights, powers, and duties in will contests and other types of contested estate litigation.1

Proponents of a PR's power to participate argue that the PR, as the decedent's chosen representative, is duty-bound to uphold the decedent's will against attack. Others argue that the PR should be a neutral party who acts as stakeholder and does not advocate a position. As such, they argue that the PR lacks standing or the right or power to advocate in a will contest.

This article discusses whether a PR has a legal right or duty under Colorado law to actively participate in a will contest, with a brief introductory explanation of objections to PR participation. It reviews the history of a PR's duties and powers in will contests in Colorado and examines the current statutory authority. It also discusses the Colorado Probate Code and Fiduciary Powers Act with regard to the PR's rights, powers, and obligations.

Objections to
PR Participation

An interested party might object to the PR's active or continued participation at the commencement of the probate proceeding or at any later stage, including on appeal. Typically, the situation arises when an interested party believes that the PR's participation will adversely or unfairly impact the outcome for the objecting party. The impact may be in the form of a reduced share (or no share) of the estate or a large reduction in the size of the estate due to the expense of litigation.

Sometimes objections are raised for tactical or practical reasons. For example, an interested party may object where the PR also is an heir or devisee. The purpose of the objection may be to compel the heir/PR to use his or her personal funds to defend the will from attack. If permitted, this tactic may undermine or even eliminate the heir's resolve and financial willingness to defend the will, thereby potentially enhancing the contestant's likelihood of success. This has been described as "leveling the playing field."

Historical Perspective

To appreciate the current debate about PRs and will contests, a brief historical perspective is helpful. The right of an executor to participate in a will contest has its origins in the common law of England. Thus, in the eighteenth century, Sir William Blackstone described the following "power and duty of a rightful executor or administrator":2

The executor or the administrator . . . must prove the will of the deceased: which is done either in common form, which is only upon his own oath before the ordinary, or his surrogate; or per testes, in more solemn form of law, in case the validity of the will be disputed. . . .3

In Colorado, the role of an executor regarding the proof of a decedent's will was addressed in the First Session of the Legislative Assembly of the Territory of Colorado in 1861. In the first Colorado law on the issue, the territorial legislature enacted the following:

It shall be the duty of the executor or executors of the last will and testament of any person deceased, knowing of his, her or their being so named and appointed, within thirty days next after the decease of the testator or testatrix, to cause such will to be proved. . . .4 (Emphasis added.)

The law imposed on all executors who declined to serve the affirmative obligation to "declare" their refusal to accept. It also imposed a fine of $20 per month on any executor who failed to timely present the will without a "just excuse."5

During the ensuing years, the executor's role in will contests was clarified and expanded by Colorado's legislature and appellate courts. The courts also weighed in concerning the permissible role of administrators in different types of estate litigation. In 1893, the Colorado Court of Appeals held that the "costs" incurred by co-administrators after unsuccessfully opposing an heirship claim were properly paid from the intestate's estate.6 The court noted that the co-administrators had not "precipitated the contest" or exceeded the "honorable limit of their duties."7

Five years later, in Barth v. Richter,8 the Court of Appeals ruled that an executor had no right to appeal a lower court's decision construing a bequest in a decedent's will.9 The court determined that the executor had no appealable interest in the controversy. Further, although the lower court's decision...